Legal and Logical Fallacies of the Brexit Saga

On 24 June 2016, the people of the UK voted in a referendum for the UK to leave the EU. Now, 2 years and 5 months later, not only the UK has not ended its membership of the European Union, but there is still no certainty of when, how and whether this will happen at all. And the arguments still continue. Here we consider the issues involved.

The legal side of the issue is simple: the UK Parliament had passed Referendum Act 2015, the referendum was held in June 2016 on a simple straightforward issue STAY (in the EU) or LEAVE (the EU), and the result was LEAVE. And "leave the EU", has a clear, unambiguous meaning of "the UK ending its membership of the European Union with all the consequences of this decision".

Ending membership of an organization is also a simple straightforward act. Membership of an organization is a relationship based on a contract (agreement) between a member and the organization. Ending membership of an organization is done by the member giving a formal written notice setting the date of the termination of the membership. Normally, the minimal notice period (the time between the giving of the notice and the date of the end of the agreement) is stated in the agreement itself. During this "notice period", the member and the organization perform any activities related to the termination (settling any outstanding payments etc). On the termination date, the agreement ends, and the parties become free of the mutual obligations arising from the membership agreement.

By enacting Referendum Act 2015 the Parliament has imposed on the UK government the duty to conduct the referendum and to implement its results, and granted the government the powers to do so. And all the government had to do was to serve on the EU a formal written notice of the termination date and to take any termination related actions between the date the notice was served and the date set in the notice.

And, if the UK government had performed its duties under the Referendum Act 2015, by now the UK would have ceased to be member of the EU.

But this did not happen.

As it happened, Lord Kerr, who drafted the termination clause of the Treaty of Lisbon (the EU membership agreement), believed that such clauses are unnecessary, because "if you stopped paying the bills and you stopped turning up at the meetings, in due course your friends would notice that you seemed to have left". So, instead of putting into the termination clause (Article 50) the requirement to give a notice, he put requirements: (a) to agree a deal about the future relationships within 2 years, (b) to end the agreement without a deal, if no agreement has been reached within 2 years, or (c) to continue the negotiations about the deal after 2 years for an indefinite time.

The purpose of termination clauses of agreements are to deal with the situation when one of the parties has decided to end the agreement and there is nothing left to "negotiate", but all that is left is to settle any outstanding financial or similar commitments. And, yes, it is possible to end an agreement without giving notice or discharging any outstanding obligations by simply "disappearing" and letting the other side guess why the member has "stopped paying the bills and turning up at the meetings", as the "noble" Lord Kerr believes should be done. But once the other side do discover that their partner has left, they will terminate the agreement, but, if any outstanding commitments remain unpaid, or the sudden termination of the agreement causes them damage or expense, they would proceed to recover this damage from the absconding side through the legal system.

While to any business person with experience of agreements, or a contract lawyer, it is obvious that Article 50 of the Treaty of Lisbon is nonsensical and legally and logically absurd, and, if pursued, would make the process of ending the UK membership of the EU uncertain as to the time and outcome, the government and the Media could not see it, and the government, to use their words, "triggered" Article 50, and having done so became a helpless victim of its defective logic: the only way they could do any deal with the EU was to accept the EU terms, the only other alternative was to exit without any agreement.

And while Referendum Act 2015 gave the government the authority to end the UK membership of the EU, this authority did not extend to making any agreements with the EU about the future. To make agreements with the EU about the future relationships was beyond the scope of Referendum Act 2015, and, if this would involve any UK legislation, it would have to be done through the usual Parliamentary procedure: passing through the House of Commons and the House of Lords, that is, to make a deal with the EU about the future needed not only agreement of the EU, but also of the UK Parliament.

And this is where the present status of Brexit is today: the UK government has agreed with the EU some terms of ending the EU membership, which, if approved by the UK Parliament, will open up negotiations with the EU about the future to be done in the next 2 years, or more. But many of the members of the UK Parliament are against the terms of this draft agreement, and, if they vote against this draft, the government has no clear answer what they do next.

The government has legal constitutional duty to implement the referendum result, but they have not done it up to now, and it is still not clear how the Brexit Saga ends. Of course, they can correct their error by abandoning their "deal", which is only a draft, and start preparing for an orderly end of membership on the agreed date to avoid the "crashing out" scenario with which they are frightening the public. But this is "humiliating", and politicians are proud people.